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Doma Sahu Vs. Nathai Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1886)ILR13Cal50
AppellantDoma Sahu
RespondentNathai Khan and ors.
Cases ReferredPergash Koer v. Mohabir Pershad Narain Singh I.L.R.
Excerpt:
mortgage - foreclosure--notice of foreclosure--reg. xvii of 1806. - .....says that the perwana which the judge is to send with a copy of the petition shall be 'under his seal and official signature.' the subordinate judge has found, and his finding of fact is not questioned, that the notice, a copy of which was served upon the defendant harihar pershad, does not bear the official signature of the district judge. it bears the seal of the judge and the signature of the sheristadar of his court. and upon the authority of a case of basdeo singh v. mata din i.l.r. 4 all. 276 the subordinate judge has held that that is not a valid notice. we are of opinion that this view of the subordinate judge is right. we quite agree that the allahabad decision does not go to the full extent to which the subordinate judge goes; and that the two cases differ in this.....
Judgment:

Norris and Beverley, JJ.

1. Another objection was raised before the Subordinate Judge, which is this: Section 8, Regulation XVII of 1806, says that the perwana which the Judge is to send with a copy of the petition shall be 'under his seal and official signature.' The Subordinate Judge has found, and his finding of fact is not questioned, that the notice, a copy of which was served upon the defendant Harihar Pershad, does not bear the official signature of the District Judge. It bears the seal of the Judge and the signature of the sheristadar of his Court. And upon the authority of a case of Basdeo Singh v. Mata Din I.L.R. 4 All. 276 the Subordinate Judge has held that that is not a valid notice. We are of opinion that this view of the Subordinate Judge is right. We quite agree that the Allahabad decision does not go to the full extent to which the Subordinate Judge goes; and that the two cases differ in this respect--that in the Allahabad case there was only the official seal of the Court and no signature of the Judge or of any other officer, but in the present case there is the signature of the sheristadar. It would be almost impossible to hold, we think, that the sheristadar's signature is the official signature of the Judge. If there were any evidence from which we could have found as a fact that the Judge authorized the sheristadar to affix the official seal of the Court upon this perwana and authorized the sheristadar to sign his, the Judge's, name by signing his, Sheristadar's, own name, the Subordinate Judge might have been in error. But there is absolutely no evidence upon the record, and one can hardly imagine any circumstances which would warrant the drawing of such an inference. We think, therefore, that this objection must hold good.

2. We have been asked by Baboo Mohesh Chunder that, if we find either or both of these objections to be good, to follow the decision, to which he has called our attention, of Mr. Justice Mitter and Mr. Justice Field in Pergash Koer v. Mohabir Pershad Narain Singh I.L.R. 11 Cal. 582. We do not think that, under the circumstances of the case, we should be justified in doing this, because we are not satisfied that all parties, who are interested in the mortgaged properties, are before the Court. In that case apparently all the proper parties interested in the mortgaged properties were before the Court. In this case we are not satisfied that such is the case; and it might give rise to great injustice and certainly to considerable confusion, if we were to follow the course which we are asked to follow. We cannot therefore accede to that application.

3. The result is that the appeal must be dismissed with costs.


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